The President has just declared a National Emergency on our southern border. He has stated that he will reapportion funds to combat this national emergency through the construction of a border wall.
In declaring the National Emergency, President Trump stated he was doing so to address a “national security crisis.” He highlighted the increased problem of drugs, gangs, violent crime, and human trafficking coming across the southern border.
The ACLJ has prepared an extensive legal analysis of this issue and concluded that, based on the facts at hand, the President has both the constitutional and statutory authority to declare such a National Emergency and to secure funding for a wall on our southern border.
In short, the President of the United States possesses the authority under the National Emergencies Act to declare a national emergency for the purposes of securing the Nation from sundry threats and to halt an ongoing humanitarian crisis, resulting from a lack of funding to deal with the current situation. To be clear, as we will explain in detail below, Congress has specifically granted the President express statutory authority to make this declaration.
The threats facing our borders are steeply rising and without stricter border security, our nation remains vulnerable to the drug and crime violence that proliferate along the U.S./Mexico border. According to Department of Homeland Security data, within the last three years, “DHS has seized 74 percent more currency, 41 percent more drugs, and 159 percent more weapons along the Southwest border as compared to fiscal years 2006-2008.”
Across the board, “The Department of Homeland Security (DHS) refuses entry to 7 known or suspected terrorists every day, 50 every week, and 2,500 every year.” There has been a 300% increase in unaccompanied alien children and a 600% increase in family units for fiscal year (FY) 2017. The Border Patrol also saw a 73% increase in assaults on officers along the Southwest border for FY 2017.
According to a Congressional Research Service Study: “Mexican transnational criminal organizations (TCOs) ‘remain the greatest criminal drug threat to the United States; no other group is currently positioned to challenge them.’”
In Fiscal Year 2017 alone, six drug types accounted for 96.1% of drug trafficking offenses: Meth (36.9%), Powder Cocaine (20.3%), Marijuana (14.1%), Crack Cocaine (8.2%), Heroin (13.8%), and Oxycodone (2.8%). In 2015, a total of 1,555,552 lbs. of illegal drugs had been seized coming across the Southwest border. Among these drugs, there has been an increasing concern regarding drugs contributing to the opioid drug abuse epidemic, such as heroin. According to the Drug Enforcement Administration, “The SWB [Southwest border] remains the primary entry point for heroin into the United States.” In 2017, 7,979 kg of heroin were seized nationwide, with 3,090 kg (39%) of that figure being seized at the Southwest border. Significantly, the DEA has recognized that “[s]ince 2015 most of the heroin sold in the U.S. is from Mexico.”
Additionally, gangs and gang violence continue to pose dangers to American citizens. MS-13, a gang whose motto is to “kill, steal, rape, and control,” has a reputation for particularly violent criminal activity. Over 10,000 MS-13 members are in the United States conducting gang activities in at least 40 states and the District of Columbia. In November 2018, Texas reaffirmed that MS-13 is a Tier One threat.
Within the United States, MS-13 gang members are involved in “extortion, drug distribution, prostitution, robbery, and murder, as well as in more transnational illicit activity such as drug trafficking and human smuggling and trafficking.”
In a 2018 study, the Center for Immigration Studies reviewed 506 MS-13 members that were arrested or charged with crimes in 22 states. Of these, 207 MS-13 members were charged with murder; over 100 were accused of conspiracy/racketeering, and dozens of others were arrested for “drug trafficking, sex trafficking, attempted murder, sexual assaults, and extortion.” Out of the 506 MS-13 suspects, 126 were illegal immigrants, and 38 of the 207 murder suspects were illegal aliens. 120 out of the 506 MS-13 suspects arrived as UACs (Unaccompanied Alien Children), including 48 of the murder suspects.
The crime level stemming from the Mexican-U.S. border causes concern for the safety of United States’ citizens. From 2016–2018, United States Customs and Border Protection reported the following convictions: 2,205 for assault, battery, and domestic violence; 1,742 for burglary, robbery, larceny, theft, and fraud; 5,116 for driving under the influence; 14 for homicide and manslaughter; 15,199 for illegal entry and re-entry; 508 for illegal weapons possession, transport, trafficking; 370 for sexual offenses; 5,693 for other. Additionally, border apprehensions steadily increased through 2018 from a low of 25,905 in January 2018 to 62,456 in November 2018.
Sex trafficking is also a major concern with the United States-Mexico border. Currently, a minimum of 47 sex-trafficking rings operate in Mexico. An estimated 45,000 to 50,000 persons are trafficked into the U.S. yearly. According to the Department of State, Mexico is the primary country responsible for sex trafficking within the United States.
These statistics constitute a tangible and incontrovertible manifestation of an increasing threat to our national security. The President’s declaration of a National Emergency is founded upon the legitimate concerns regarding multiple threats infiltrating our southern border.
Presidential Power & the National Emergencies Act
When a national emergency like the one our country is currently facing on the border presents itself, the President may exercise certain constitutionally implied and/or statutorily granted emergency powers. Under the National Emergencies Act, 50 U.S.C. § 1601–1651 (2018), Congress established certain procedural formalities for utilizing some of the statutorily delegated emergency authority, including requirements that the President formally declare the existence of a national emergency and specify upon what statutory authority he intends to act.
The Act also provides Congress a means of terminating the declaration, assuring that political pressure, rather than litigation, would serve as a check against any alleged abuse of executive authority. This provision, in our considered view, is more than a mere procedural formality; indeed, this aspect of the Act undercuts a primary argument advanced by the President’s critics on this issue, i.e., the contention that the Act does not authorize the President to utilize emergency declarations or power because Congress has specifically considered and refused to appropriate funds for the wall.
Since Congress has not placed any serious limits on the President’s power to declare an emergency and since Congress’ decision to vest itself in the statute with the power to terminate a presidentially declared emergency at the appropriate time, the solution exists to resolve this ostensible problem, if it actually exists. Importantly, the Act contains no formal definition of what constitutes a national emergency. Instead, the Act appears to recognize the President’s constitutional discretion to make such a determination.
Contrary to the above-referenced analysis, some may observe that President Obama issued an Executive Order (EO) on immigration that was clearly contestable in court. But distinctions abound. First, President Obama’s EO was issued in an arena wherein there was already underlying law in place, meaning that his EO essentially changed or attempted to change existing law by executive fiat without the participation of Congress. In his own words, he “change[d] the law” – by creating a program granting “deferred action” and hence, “lawful presence” to over 4 million unlawfully present immigrants. The district court found that he was “not just rewriting the laws, he is creating them from scratch.” This could not be more different from what President Trump is doing. President Trump has the authority to uphold the laws and protect the Nation. He is upholding them with explicit congressional approval as he is acting under a specific statutory grant, which allows him to do just this: declare a national emergency. If Congress disagrees, it has the right to rescind it. In addition, President Obama's immigration EO was a clear infringement on Congress’ Article I authority to determine classes that are granted entry, while this action is both a use of a statutory grant and an exercise of an Article II national security power to prevent entry based on a potential threat. The distinction boils down to this: President Obama was trying to change the law to give illegal immigrants legal status. President Trump is trying to uphold the law, which says that illegal immigrants are just that: illegal. These two situations could not be more different, and the failure to understand such distinctions in presidential action constitutes an unwarranted conflation of the two different situations.
It is our view that widely available statistics and data clearly support the decision by the President to declare a national emergency. Although it can be argued that traditional notions of emergencies encompass aspects of suddenness, and while some commentators will doubtlessly contend that the border-related crises have been anything but sudden, any impartial analysis of the history of congressional and presidential treatment of national emergencies over the years reveals that suddenness has not been viewed as a requirement of the Act. The dozens of officially continuing states of emergency in the United States relied upon by previous Presidents substantiates the defensibility of this conclusion.
Additional Statutory Provisions
Regarding statutory provisions that the President may assert as a basis for declaring an emergency for the situation at hand, one key statute permits the Secretary of the Army to halt Army civil works projects during a presidentially declared emergency and instead direct troops and other resources to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.” The Army Corps of Engineers (COE) has a large capacity and operates pursuant to a separate budget from that of the Army. The COE FY 2019 Budget includes $4.785 billion in gross discretionary funding for the Civil Works program of the U.S. Army Corps of Engineers.
Another law permits the Secretary of Defense, in an emergency, to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces,” using funds that Congress had appropriated for military construction purposes that have not yet been earmarked for specific projects.
Additionally, Congress has effectively pre-approved a wall-like barrier under other laws, including one that authorizes the military to construct border “fences” blocking drug-smuggling corridors, and another statute called “The Secure Fence Act of 2006.” This act empowers the Department of Homeland Security to do exactly what the President has indicated he desires to do: build a physical infrastructure enhancement along the border. In addition to the existence of such statutory authority, the construction of a wall arguably meets the legal definition of military construction.
Prior Presidential Action under the National Emergencies Act
The emergency already declared in Executive Order 13224 by President George W. Bush, which authorized the use of economic sanctions to address terrorism and threats of terrorism committed by foreign terrorists against U.S. nationals or the United States, was relied upon to support President Barack Obama’s Directive No. 3025.18: Defense Support of Civil Authorities, under which U.S. Commanders “are provided emergency authority.” Some conditions that allow for the use of this directive include military support needed “to prevent significant loss of life or wanton destruction of property” or “to restore governmental function and public order.”
National Emergencies Act and Judicial Review
On the issue of judicial review that arises in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and its progeny, see, e.g.,Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2085–84 (2015), those cases are distinguishable and, in our view, not inconsistent with a presidential declaration of national emergency under the current circumstances. In sum, application of Youngstown should lead a court to recognize the President’s power to act subject to the authority provided by relevant constitutional and statutory provisions. However, a more in depth review of Youngstown and its application to the issues at hand is necessary and recommended – with a basic understanding that presidential action in this case may be based on the President’s inherent constitutional power under Article II of the Constitution as well as statutorily granted power via the legislative branch, or pursuant to a combination of both, which appears to be the strongest and most ideal basis in support of the President ability to act in the face of the current crisis. In addition, it is important to note that the Supreme Court’s reversal of President Truman’s seizure of the Nation’s steel mills in Youngstown Sheet & Tube is a situation that is inapplicable here because the issue in that case involves taking possession of private property rather than securing the nation’s borders.
Although the National Emergencies Act does not contain a specific provision allowing judicial review, concerning justiciability, it seems the Supreme Court would likely allow review of presidential action under the National Emergencies Act. It could do so without deciding such review is appropriate as a matter of law while affording great deference to the President.
The ACLJ is monitoring this situation and preparing to file amicus briefs in defense of the National Emergency declaration should it be challenged in court.
You can download a copy of the ACLJ’s legal analysis here.
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